Babylonian Talmud: Tractate Baba Mezi'a

MISHNAH. TWO [PERSONS APPEARING BEFORE A COURT] HOLD A GARMENT.1 ONE OF THEM SAYS, 'I FOUND IT', AND THE OTHER SAYS, 'I FOUND IT'; ONE OF THEM SAYS, 'IT IS ALL MINE', AND THE OTHER SAYS, 'IT IS ALL MINE', THEN THE ONE SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND THE OTHER SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND [THE VALUE OF THE GARMENT] SHALL THEN BE DIVIDED BETWEEN THEM. IF ONE SAYS, 'IT IS ALL MINE', AND THE OTHER SAYS, 'HALF OF IT IS MINE', HE WHO SAYS, 'IT IS ALL MINE' SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN THREE QUARTERS, AND HE WHO SAYS, 'HALF OF IT IS MINE' SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN A QUARTER. THE FORMER THEN RECEIVES THREE QUARTERS [OF THE VALUE OF THE GARMENT] AND THE LATTER RECEIVES ONE QUARTER. IF TWO RIDE ON AN ANIMAL, OR ONE RIDES AND THE OTHER LEADS IT, AND ONE OF THEM SAYS, 'IT IS ALL MINE', AND THE OTHER SAYS, 'IT IS ALL MINE', THEN THE ONE SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND THE OTHER SHALL SWEAR THAT HIS SHARE IN IT IS NOT LESS THAN HALF, AND [THE VALUE OF THE ANIMAL] SHALL THEN BE DIVIDED BETWEEN THEM. IF BOTH ADMIT [EACH OTHER'S CLAIMS] OR IF THEY HAVE WITNESSES [TO ESTABLISH THEIR CLAIMS] THEY RECEIVE THEIR SHARES WITHOUT AN OATH.

GEMARA. What need is there [for the Mishnah] to [give two pleas of the litigants and] state: ONE OF THEM SAYS, 'I FOUND IT', AND THE OTHER SAYS, 'I FOUND IT', ONE OF THEM SAYS, 'IT IS ALL MINE', AND THE OTHER SAYS, 'IT IS ALL MINE'? Surely one plea would have been sufficient! — It is only one plea: One says 'I found it and [therefore] it is all mine', and the other says 'I found it, and [therefore] it is all mine'! But why not just state 'I found it', and it will be understood that the intention is to claim the whole garment? — The term 'I FOUND IT' might have been explained as denoting 'I saw it', the mere seeing [of the garment] entitling him to claim it as his possession.2 Therefore the plea 'IT IS ALL MINE' is added, so as to make clear that seeing alone does not constitute a claim. But how could it be thought that one who has only seen [the garment] could plead 'I found it'? Does not Rabbannai3 say that the phrase and thou hast found it4 means 'thou hast taken hold of it'? — It is admitted that the Scriptural use of the term 'found' implies having taken hold, but the Tanna uses popular language, in which, on seeing something, one might use the term 'found it', [the belief being prevalent] that one acquires [a lost article] by sight alone. For this reason it was necessary to add the plea 'IT IS ALL MINE' and thus to indicate that the mere seeing [of an ownerless object] constitutes no claim to possession. But even so, would it not have been sufficient to state 'IT IS ALL MINE' without the plea of 'I FOUND IT'? — Had [the Mishnah] stated only the plea 'IT IS ALL MINE' I might have said that elsewhere [in the Talmud] the term 'found' is used to mean ['seen', and the conclusion would have been drawn] that mere sight constitutes a claim to possession. For this reason the Mishnah states first 'I FOUND IT' and then 'IT IS ALL MINE' so that we may gather from the additional clause that mere sight does not constitute a claim to possession.

But how could you say that the two pleas are really one? Is not each plea introduced by the words: ONE OF THEM SAYS and THE OTHER SAYS,5 [viz.] ONE OF THEM SAYS 'I FOUND IT', AND THE OTHER SAYS 'I FOUND IT', ONE OF THEM SAYS 'IT IS ALL MINE', etc.? [To this] R. Papa. or R. Shimi b. Ashi, or, as some say, Kadi,6 replied: The first plea applies to a case of finding, but the second plea applies to a case of buying and selling.7 And it is necessary [to have the two cases].

For if the Tanna had dealt solely with the case of finding I might have said that only in such a case would the Rabbis impose an oath, because each disputant might permit himself [to claim the garment] by saying to himself, 'My neighbour loses nothing through my action [as it cost him nothing to acquire the garment]; I shall go and take hold of it and share it with him.'1 But in the case of a bought article, where this argument does not apply,2 it might be assumed that no oath was to be imposed. On the other hand, had the Tanna dealt solely with a case of buying and selling, it might be assumed that only in such a case would the Rabbis impose an oath, because each disputant might permit himself [to claim the garment] by saying to himself, 'My neighbour has paid the price and I am prepared to pay the price; seeing that I need it I shall take it, and let my neighbour take the trouble to go and buy another garment.' But in the case of a found article, where this argument does not apply, it might be assumed that no oath was to be imposed; therefore both cases are necessary.

But how could such a situation arise in the case of a bought article? One could surely ascertain from the seller as to which of the two paid him the money? — The case is one in which the seller took money from the two purchasers, willingly from one, and unwillingly, from the other, and we do not know from whom he took it willingly and from whom unwillingly.3

Shall it be said that our Mishnah is not in agreement with the view of Ben Nannus? For does not Ben Nannus4 express surprise at the decision of the Sages to impose oaths on disputants one of whom is bound to swear falsely? — The Mishnah may well be in agreement with Ben Nannus. For in the case [where Ben Nannus objects to the oath] it is certain that if both parties take the oath one of them will commit perjury. But in our Mishnah it may well be assumed that no perjury will be committed [even if both parties swear], for it is possible that both of them picked up the garment simultaneously.5

Again, shall it be said that our Mishnah is not in agreement with the view of Symmachus? For does not Symmachus, [in another case,]6 maintain that disputed money of doubtful ownership should be divided among the disputants without an oath? But would not the same difficulty arise [if we compared the decision of our Mishnah] with that of the Rabbis7 [who are opposed to Symmachus]? For have these Rabbis not declared that 'the claimant must bring evidence to substantiate his claim' [while in our Mishnah the disputed article is divided on oath]? — What a comparison! In the case in which the Rabbis apply the principle that 'the claimant must bring evidence' the contending parties had not taken hold of the disputed object, but here [in our Mishnah] since both disputants hold the garment8 it is rightly divided, after both have taken the oath. But in regard to Symmachus the argument is the other way. For if he decided in the case referred to [where no party is in possession of the disputed property] that the amount should be divided among the litigants without an oath, how much more readily would he give this decision in a case like ours, where both disputants are equally in possession of the article in question; [and thus the query remains, 'Shall it be said that our Mishnah is not in agreement with Symmachus?'] It can still be maintained that the Mishnah is in agreement with Symmachus. For Symmachus expressed his view [that the property in dispute should be divided without an oath] only in a case where both litigants are uncertain as to the true facts [and it would therefore be wrong to make either of them swear] but where both parties assert their claims with certainty [as in our Mishnah] he would take a different view.

But does not Rabbah the son of R. Huna maintain that Symmachus's decision applies also to a case where both parties are certain and definite in their claims?9 — It can still be maintained that our Mishnah is in agreement with Symmachus. For Symmachus expressed the view [as quoted] only in a case where a verdict in favour of one would involve a loss to the other, but where no actual monetary loss is involved [as in our Mishnah] he would take a different view. But then again, can we not infer by means of a Kal wa-homer10 [that Symmachus would disagree with our Mishnah]? For if even in the case where the party entitled to the verdict loses money by being awarded only half of the disputed amount,

The oath would then act as a deterrent, as even if he did not hesitate to put forward a wrong claim he would not be ready to commit perjury.

Apart from the loss of the money paid, there is the loss of the garment which the man who went to the trouble of buying it evidently needed for his own use.

The evidence of the seller, even if available, would not be trusted in such a case, as he is not likely to remember, after the two have left, from whom he took the money willingly (Rashi). [Tosaf. reads, he did not know, i.e., the seller does not recollect the matter; v. Kid. 73a.]

V. Shebu. 43a. It is the case of a householder having instructed a shopkeeper to supply his employees with goods for the amount that he (the householder) owed them in wages. The shopkeeper asserts that he has supplied the goods, while the employees deny having received any. The decision of the Sages is that both the shopkeeper and the employees take an oath in confirmation of their statements, and the householder pays both parties, whereas Ben Nannus holds that both receive payment without taking an oath.

In this case each finder would be entitled to swear that half of the garment belongs to him, in the belief that he was first in picking up the whole of it. The same applies to a bought article if the seller consented to sell it to both at the same time.

v. B.K. 46a.

V. ibid.

And although each one claims the whole garment, and thus seeks to acquire the part that the other is holding, yet they are both in the same position, so that the above principle does not apply.

Which makes the above distinction (between 'certain' and 'uncertain') invalid?